Court of Appeal Affirms Limits on Judicial Review of Upper Tribunal Decisions Under Section 11A of the 2007 Act

Citation: [2023] EWCA Civ 1337
Judgment on

Introduction

In the matter of LA (Albania), R (on the application of) v The Upper Tribunal (Immigration & Asylum Chamber), the Court of Appeal Civil Division grapples with pivotal issues pertaining to the extent of judicial review over decisions of the Upper Tribunal. The contention centers around the effectiveness of Section 11A of the Tribunals, Courts and Enforcement Act 2007 in restricting the High Court’s supervisory jurisdiction and the implications for appellants seeking to challenge decisions where permission to appeal has been declined. This case also addresses procedural nuances in the path of appeal when an application for judicial review is dismissed.

Key Facts

The applicant, Ms LA, an Albanian citizen seeking asylum in the UK on the grounds of persecution for being a lesbian Muslim, faced a refusal from the Secretary of State and subsequent certifications as ‘clearly unfounded.’ Despite acquiring the right to an in-country appeal, she delayed her appeal due to misunderstandings and medical issues. The First-tier Tribunal (FTT) and, on further application, the Upper Tribunal both dismissed her appeals.

LA then sought a judicial review of the Upper Tribunal’s decision, which was originally rejected by the High Court on the grounds of lack of jurisdiction as codified in Section 11A of the 2007 Act. The subsequent application to the Court of Appeal focused on whether Section 11A effectively limits judicial review grounds and whether a prior case, R(Oceana) v Upper Tribunal, was decided correctly.

The judgments addressed several legal principles:

  1. Finality of Upper Tribunal Decisions: Central to the case is the introduction of section 11A to the 2007 Act. The Law Lords unanimously found that the explicit wording of this section does indeed restrict the High Court’s ability to exercise its supervisory jurisdiction, save for certain exceptions. The court concluded that only questions that lead to genuine disputes about the application of exceptions under section 11A(4) have the potential to be reviewed judicially.

  2. Scope of Judicial Review: The court addressed the proper test to be applied when an Upper Tribunal decision is contested under judicial review. The parties must show a “genuinely disputable question” that an exception to section 11A applies, which mirrors the standards applied by the Privy Council concerning issues of constitutional interpretation.

  3. Exceptions to Finality: The court clarified applying the exceptions in section 11A(4) where a decision must demonstrate a “fundamentally procedurally unfair” process. In this particular case, the argued grounds did not elicit the Upper Tribunal’s actions as procedurally unfair; rather, they challenged the reasoning of the FTT, not satisfying the requirements in section 11A(4)(c)(ii) of the 2007 Act.

  4. Procedural Issues in Appeals: The procedural concern related to whether the Court of Appeal could hear the case without a renewed oral hearing in the High Court was also discussed. Determinations revealed that if the High Court dismisses the application for lack of jurisdiction, a renewed hearing would not be relevant, and an appeal to the Court of Appeal could proceed as per CPR 52.8(2).

Outcomes

The Court of Appeal’s systematic approach yielded these outcomes:

  • Affirmed the decision of the High Court: The Lower Court was correct in its determination, and thus the Court of Appeal did not possess jurisdiction to entertain the appeal.

  • No jurisdiction for judicial review: The Court concludes that none of the argued grounds for judicial review matched the exceptions in section 11A(4).

  • The Court provided guidelines: It clarified how section 11A operates, dictating that a claim for judicial review against the Upper Tribunal must fall strictly within the specified exceptions to have a prospect of success.

Conclusion

This case underscores the limited scope of judicial review over decisions of the Upper Tribunal established by section 11A of the 2007 Act. It establishes that the exceptions stipulated within the legislative framework serve as the exclusive grounds upon which a challenge may be mounted, representing a significant legislative intention in controlling the finality of immigration and asylum decisions. Furthermore, the Court of Appeal delineates the procedural pathway for applications for judicial review when the High Court dismisses for lack of jurisdiction, providing clarity and defining the precise ambit within which judicial review of such decisions may operate. This case is a landmark in shaping the role and reach of judicial review in immigration law in the UK.